February

23, 2015
An Open Letter to Members of Parliament on Bill C-51
Dear Members of Parliament,
Please accept this collective, open letter as an expression of the signatories deep concern that Bill C-51
(which the government is calling the Anti-terrorism Act, 2015) is a dangerous piece of legislation in terms
of its potential impacts on the rule of law, on constitutionally and internationally protected rights, and
on the health of Canadas democracy.
Beyond that, we note with concern that knowledgeable analysts have made cogent arguments not only
that Bill C-51 may turn out to be ineffective in countering terrorism by virtue of what is omitted from the
bill, but also that Bill C-51 could actually be counter-productive in that it could easily get in the way of
effective policing, intelligence-gathering and prosecutorial activity. In this respect, we wish it to be clear
that we are neither extremists (as the Prime Minister has recently labelled the Official Opposition for
its resistance to Bill C-51) nor dismissive of the real threats to Canadians security that government and
Parliament have a duty to protect. Rather, we believe that terrorism must be countered in ways that are
fully consistent with core values (that include liberty, non-discrimination, and the rule of law), that are
evidence-based, and that are likely to be effective.
The scope and implications of Bill C-51 are so extensive that it cannot be, and is not, the purpose of this
letter to itemize every problem with the bill. Rather, the discussion below is an effort to reflect a basic
consensus over some (and only some) of the leading concerns, all the while noting that any given
signatorys degree of concern may vary item by item. Also, the absence of a given matter from this letter
is not meant to suggest it is not also a concern.
We are grateful for the service to informed public debate and public education provided, since Bill C-51
was tabled, by two highly respected law professors Craig Forcese of the University of Ottawa and Kent
Roach of the University of Toronto who, combined, have great expertise in national security law at the
intersection of constitutional law, criminal law, international law and other sub-disciplines. What
follows and we limit ourselves to five points owes much to the background papers they have
penned, as well as to insights from editorials in the media and speeches in the House of Commons.
Accordingly, we urge all MPs to vote against Bill C-51 for the following reasons:
1. Bill C-51 enacts a new security-intelligence information-sharing statute of vast scope with no
enhanced protections for privacy and from abuse. The law defines activities that undermine the
security of Canada in such an exceptionally broad way that terrorism is simply one example of nine
examples, and only lawful advocacy, protest, dissent and artistic expression is excluded. Apart from
all the civil-disobedience activities and illegal protests or strikes that will be covered (e.g. in relation to
interference with critical infrastructure), this deep and broad intrusion into privacy is made worse by
the fact there are no corresponding oversight or review mechanisms adequate to this expansion of the
states new levels of information awareness. Concerns have already been expressed by the Privacy
Commissioner, an Officer of Parliament, who has insufficient powers and resources to even begin to

oversee, let alone correct abuses within, this expanded information-sharing system. And there is
virtually nothing in the bill that recognizes any lessons learned from what can happen when
information-sharing ends up in the wrong hands, as when the RCMP supplied poor information to US
authorities that in turn led to the rendition of Maher Arar to Syria and his subsequent torture based on
that and further information coming from Canada.
2. Bill C-51 enacts a new terrorism offence that makes it criminal to advocate or encourage terrorism
offences in general where one does this being reckless as to whether the communication may
contribute to someone else deciding to commit another terrorism offence. It is overbroad, unnecessary
in view of current criminal law, and potentially counter-productive. Keep in mind how numerous and
broad are the existing terrorism offences in the Criminal Code, some of which go beyond what the
ordinary citizen imagines when they think of terrorism and all of which already include the general
criminal-law prohibitions on counselling, aiding and abetting, conspiring, and so on: advocacy or
encouragement of any of these in general could attract prosecution under the new C-51 offence. Note
as well that gestures and physical symbols appear to be caught, and not just verbal or written
exhortations. In media commentary and reports, there have been many examples of what could be
caught, including in some contexts advocacy of armed revolution and rebellion in other countries (e.g. if
C-51 had been the law when thousands of Canadians advocated support for Nelson Mandelas African
National Congress in its efforts to overthrow apartheid by force of arms, when that was still part of the
ANCs strategy). So, the chill for freedom of speech is real. In addition, in a context in which direct
incitement to terrorist acts (versus of terrorism offences in general) is already a crime in Canada, this
vague and sweeping extension of the criminal law seems unjustified in terms of necessity and indeed,
the Prime Minister during Question Period has been unable or unwilling to give examples of what
conduct he would want to see criminalized now that is not already prohibited by the Criminal Code. But,
perhaps most worrying is how counter-productive this new crime could be. De-radicalization outreach
programs could be negatively affected. Much anti-radicalization work depends on frank engagement of
authorities like the RCMP, alongside communities and parents, with youth who hold extreme views,
including some views that, if expressed (including in private), would contravene this new prohibition.
Such outreach may require extreme dialogue in order to work through the misconceptions, anger,
hatred and other emotions that lead to radicalization. If C-51 is enacted, these efforts could find
themselves stymied as local communities and parents receive advice that, if youth participating in these
efforts say what they think, they could be charged with a crime. As a result, the RCMP may cease to be
invited in at all, or, if they are, engagement will be fettered by restraint that defeats the underlying
methods of the programme. And the counter-productive impact could go further. The Prime Minister
himself confirmed he would want the new law used against young people sitting in front of computers in
their family basements, youth who can express extreme views on social-media platforms. Why is
criminalization counter-productive here? As a National Post editorial pointed out, the result of Bill C-51
could easily be that one of the best sources of intelligence for possible future threats public social-
media platforms could dry up; that is, extreme views will go silent because of fears of being charged.
This undercuts the usefulness of these platforms for monitoring and intelligence that lead to knowing
not only who warrants further investigative attention but also whether early intervention in the form of
de-radicalization outreach efforts are called for.

3. Bill C-51 would allow CSIS to move from its central current function information-gathering and
associated surveillance with respect to a broad area of national security matters to being a totally
different kind of agency that now may actively intervene to disrupt activities by a potentially infinite
range of unspecified measures, as long as a given measure falls shy of causing bodily harm,
infringements on sexual integrity or obstructions of justice. CSIS agents can do this activity both inside
and outside Canada, and they can call on any entity or person to assist them. There are a number of
reasons to be apprehensive about this change of role. One only has to recall that the CSIS Act defines
threats to the security of Canada so broadly that CSIS already considers various environmental and
Aboriginal movements to be subject to their scrutiny; that is to say, this new disruption power goes well
beyond anything that has any connection at all to terrorism precisely because CSIS mandate in the
CSIS Act goes far beyond a concern only with terrorism. However, those general concerns expressed,
we will now limit ourselves to the following serious problem: how Bill C-51 seems to display a complete
misunderstanding of the role of judges in our legal system and constitutional order. Under C-51, judges
may now be asked to give warrants to allow for disruption measures that contravene Canadian law or
the Charter, a role that goes well beyond the current contexts in which judges now give warrants (e.g.
surveillance warrants and search and seizure warrants) where a judges role is to ensure that these
investigative measures are reasonable so as not to infringe section 8 of the Canadian Charter of
Rights. What C-51 now does is turn judges into agents of the executive branch (here, CSIS) to pre-
authorize violations of Canadian law and, even, to pre-authorize infringements of almost any Charter
right as long as C-51 limits bodily harm, sexual integrity and obstruction of justice are respected.
This completely subverts the normal role of judges, which is to assess whether measures prescribed by
law or taken in accordance with discretion granted by statute infringed rights -- and, if they did, whether
the Charter has been violated because the infringement cannot be justified under the Charters section
1 limitation clause. Now, a judge can be asked (indeed, required) to say yes in advance to measures that
could range from wiping a targets computer clear of all information to fabricating materials (or playing
agent-provocateur roles) that discredit a target in ways that cause others no longer to trust him, her or
it: and these examples are possibly at the mild end of what CSIS may well judge as useful disruption
measures to employ. It is also crucial to note that CSIS is authorized to engage in any measures it
chooses if it, CSIS, judges that the measure would not be contrary to any Canadian law or would not
contravene the Charter. Thus, it is CSIS that judges whether to even go to a judge. There is reason to
be worried about how unregulated (even by courts) this new CSIS disruption power would be, given the
evidence that CSIS has in the past hidden information from its review body, SIRC, and given that a civil-
servant whistleblower has revealed that, in a parallel context, Ministers of Justice in the Harper
government have directed Department of Justice lawyers to conclude that the Minister can certify under
the Department of Justice Act that a law is in compliance with the Charter if there is a mere 5% chance a
court would uphold the law if it was challenged in court. Finally, it is crucial to add that these warrant
proceedings will take place in secret, with only the government side represented, and no prospect of
appeal. Warrants will not be disclosed to the target and, unlike police investigations, CSIS activities do
not culminate in court proceedings where state conduct is then reviewed.

4. We now draw attention to effectiveness by noting a key omission from C-51. As the Official
Opposition noted in its reasoned amendment when it moved that C-51 not be given Second Reading,
Bill C-51 does not include the type of concrete, effective measures that have been proven to work, such
as working with communities on measures to counter radicalization of youth may even undermine
outreach. This speaks for itself, and we will not elaborate beyond saying that, within a common
commitment to countering terrorism, effective measures of the sort referenced in the reasoned
amendment not only are necessary but also must be vigorously pursued and well-funded. The
government made no parallel announcements alongside Bill C-51 that would suggest that these sort of
measures are anywhere near the priority they need to be.
5. Finally, the defects noted in points 1, 2 and 3 (information-sharing, criminalizing expression, and
disruption) are magnified by the overarching lack of anything approaching adequate oversight and
review functions, at the same time as existing accountability mechanisms have been weakened and in
some cases eliminated in recent years. Quite simply, Bill C-51 continues the governments resolute
refusal to respond to 10 years of calls for adequate and integrated review of intelligence and related
security-state activities, which was first (and perhaps best) articulated by Justice OConnor in a
dedicated volume in his report on what had happened to Maher Arar. Only last week, former prime
ministers and premiers wrote an open letter saying that a bill like C-51 cannot be enacted absent the
kind of accountability processes and mechanisms that will catch and hopefully prevent abuses of the
wide new powers CSIS and a large number of partner agencies will now have (note that CSIS can enlist
other agencies and any person in its disruption activities and the information-sharing law concerns over
a dozen other government agencies besides CSIS). Even if one judged all the new CSIS powers in C-51 to
be justified, they must not be enacted without proper accountability. Here, we must note that the
governments record has gone in the opposite direction from enhanced accountability. Taking CSIS
alone, the present government weakened CSIS accountability by getting rid of an oversight actor, the
Inspector General, whose job was to keep the Minister of Public Security on top of CSIS activity in real
time. It transferred this function to CSIS review body, the Security Intelligence Review Committee
(SIRC), which does not have anything close to the personnel or resources to carry this function out
given it does not have sufficient staff and resources to carry out its existing mandate to ensure CSIS acts
within the law. Beyond staff, we note that SIRC is a body that has for some time not been at a full
complement of members, even as the government continues to make no apology for having once
appointed as SIRCs Chair someone with no qualifications (and it turns out, no character) to be on SIRC
let alone to be its chair (Arthur Porter). And, as revealed in a recent CBC investigation, the government
has simply not been straight with Canadians when it constantly says SIRC is a robust and well-resourced
body: its budget is a mere $3 million, which has flat-lined since 2005 when the budget was $2.9 million,
even as its staff has been cut from 20 in 2005 to 17 now. Without an integrated security-intelligence
review mechanism, which should also include some form of Parliamentary oversight and/or review, and
with especially SIRC (with jurisdiction only over CSIS) not a fully effective body, we are of the view that
no MP should in good conscience be voting for Bill C-51.
Above, we have limited ourselves to five central concerns, but it is important to reiterate that some or
all of the signatories have serious concerns about a good number of other aspects of C-51 and/or
about detailed aspects of some of the concerns that were generally expressed in the above five points.

The following are some (but only some) of those concerns, in point form. They are included by way of
saying that signatories believe these all need to be looked at closely and rigorously during House of
Commons committee study of C-51, now that it has passed Second Reading:
- C-51 radically lowers the threshold for preventive detention and imposition of recognizance
with conditions on individuals. Only three years ago, Parliament enacted a law saying this
detention/conditions regime can operate if there is a reasonable basis for believing a person
will commit a terrorist offence. Now, that threshold has been lowered to may. There has
been a failure of the government to explain why exactly the existing power has not been
adequate. In light of the huge potential for abuse of such a low threshold, including through
wide-scale use (recalling the mass arrests at the time of the War Measures Act in Quebec),
Canadians and parliamentarians need to know why extraordinary new powers are needed,
especially when the current ones were enacted in the context of ongoing threats by al-Qaeda to
carry out attacks in Canada that seem no less serious than the ones currently being threatened
by entities like ISIS and al-Shabab.
- C-51 expands the no-fly list regime. It seems to have simply replicated the US no-fly list rules,
the operation of which has been widely criticized in terms of its breadth and impacts on
innocent people. Is this the right regime for Canada?
- C-51s new disruption warrants now allows CSIS to impinge on the RCMPs law enforcement
role, bringing back turf wars that were eliminated when intelligence and law enforcement were
separated in the wake of the RCMPs abusive disruption activities of the late 1960s and early
1970s. But, even more important than turf wars is the potential for CSIS behaviour in the form
of disruptive measures to undermine both the investigation and the prosecution of criminal
cases by interfering with evidentiary trail, contaminating evidence, and so on.
- C-51, in tandem with C-44, permits CSIS to engage not just in surveillance and information-
gathering abroad, but also in disruption. There are many questions about how this will work.
The danger of lawlessness seems to be significantly greater for CSIS activities abroad, in that
CSIS only needs to seek approval for disruption under C-51 where Canadian, not foreign, law
could be breached or where the Charter could be contravened (with Canadian law on the
application of the Charter outside Canada being quite unclear at the moment). And there is no
duty for CSIS to coordinate with or seek approval from the Department of Foreign Affairs, such
that the chances of interference with the conduct of Canadas foreign affairs cannot be
discounted. Nor can we ignore the likely tendency for disruption measures abroad to be more
threatening to individuals rights than in Canada: for example, Parliament needs to know
whether CSIS agents abroad can engage in detention and rendition to agencies of other
countries under the new C-51 regime.
We end by observing that this letter is dated February 23, 2015, which is also the day when the
government has chosen to cut off Second Reading debate on Bill C-51 after having allocated a mere
three days (in reality, only portions of each of those days) to debate. In light of the sweeping scope and
great importance of this bill, we believe that circumventing the ability of MPs to dissect the bill, and

their responsibility to convey their concerns to Canadians at large before a Second Reading vote, is a
troubling undermining of our Parliamentary democracys capacity to hold majority governments
accountable. It is sadly ironic that democratic debate is being curtailed on a bill that vastly expands the
scope of covert state activity when that activity will be subject to poor or even non-existent democratic
oversight or review.
In conclusion, we urge all Parliamentarians to ensure that C-51 not be enacted in anything resembling its
present form.
Yours sincerely,
Abell

Jennie

Attaran

Amir

Bakht

Natasha

Bangsund

Clayton

Associate Professor, Faculty of Law Common Law, University of

Ottawa

Associate
Professor, Faculty of Law Common Law , University of
Ottawa
Associate Professor, Faculty of Law Common Law, University of
Ottawa
Assistant Professor, College of Law, University of Saskatchewan

Beare

Margaret

Professor of Law and Sociology, York University

Bhabha

Faisal

Assistant Professor, Osgoode Hall Law School, York University

Bond

Jennifer

Bouclin

Suzanne

Assistant Professor, Faculty of Law Common Law, University of

Ottawa
Assistant Professor, Faculty of Law Civil Law, University of Ottawa

Boyd

Susan

Buhler

Sarah

Busby

Karen

Byers

Michael

Cameron

Angela

Chapdelaine

Pascale

Professor, Faculty of Law, University of Manitoba, and Director,

Centre for Human Rights Research
Professor and Canada Research Chair, Global Politics and
International Law, University of British Columbia
Associate Professor, Faculty of Law Common Law, University of
Ottawa
Professor, Faculty of Law, University of Windsor

Chartrand

Larry

Professor, Faculty of Law Common Law, University of Ottawa

Christians

Allison

Cossman

Brenda

H. Heward Stikeman Chair in Tax Law, Faculty of Law, McGill

University
Professor, Faculty of Law, University of Toronto

Professor, Peter A. Allard School of Law, University of British

Columbia
Assistant Professor, College of Law, University of Saskatchewan

Coughlan

Stephen

Professor, Schulich School of Law, Dalhousie University

Crpeau

Franois

Cyr

Hugo

Hans & Tamar Openheimer Professor in Public International Law,

Faculty of Law, McGill University
Professor of Law, University of Quebec in Montreal

Dalton

Jennifer E.

Deckha

Maneesha

Assistant Professor, School of Public Policy and Administration, York

University
Associate Professor, Faculty of Law, University of Victoria

Desrosiers

Julie

Professor, Faculty of Law, University Laval

Dietsch

Peter

Douglas

Stacy

Drummond

Susan

Associate Professor, Department of Philosophy, University of

Montreal
Assistant Professor, Department of Law & Legal Studies, Carleton
University
Associate Professor of Law, Osgoode Hall Law School, York University

Duplessis

Isabelle

Professor, Faculty of Law, University of Montreal

Farson

Stuart

Adjunct Professor, Political Science, Simon Fraser University

Ferguson

Gerry

Distinguished Professor, Faculty of Law, University of Victoria

Findlay

Leonard

Flood

Colleen

Glinas

Fabien

Professor, College of Arts and Science, University of Saskatchewan,

and Director, Humanities Research Unit
Professor, Faculty of Law, University of Ottawa; Research Chair in
Health Law & Policy
Professor, Faculty of Law, McGill University

Gilbert

Daphne

Girgis

Jassmine

Grant

Isabel

Grgoire

Marie Annik

Henderson

Sakej

Hernndez

Gleider I.

Professor, University of Saskatchewan, Research Director, Native Law

Centre of Canada
Senior Lecturer in Public International Law, Durham Law School

Hewitt

Steve

Senior Lecturer, Department of History, University of Birmingham

Associate Professor, Faculty of Law Common Law, University of

Ottawa
Associate Professor, Faculty of Law, University of Calgary
Professor, Peter A. Allard School of Law, University of British
Columbia
Associate Professor, Faculty of Law, University of Montreal

Hodgson

Louis-Philippe

Associate Professor, Department of Philosophy, York University

Hoehn

Felix

Assistant Professor, College of Law, University of Saskatchewan

Hughes

Jula

Associate Professor, Faculty of Law, University of New Brunswick

Hutchinson

Allan

Imai

Shin

Distinguished Research Professor of Law, Osgoode Hall Law School,

York University
Associate Professor of Law, Osgoode Hall Law School, York University

Jackman

Martha

Professor, Faculty of Law, University of Ottawa

Johnson

Juliet

Associate Professor, Political Science, McGill University

Johnson

Rebecca

Professor, Faculty of Law, University of Victoria

Kalajdzic

Jasminka

Associate Professor, Faculty of Law, University of Windsor

Kamphuis

Charis

Assistant Professor, Faculty of Law, Thompson Rivers University

Keyes

John

Adjunct Professor, Faculty of Law, University of Ottawa

Kianieff

Muharem

Associate Professor, Faculty of Law, University of Windsor

King

Jeff

Senior Lecturer, Faculty of Laws, University College London

Koshan

Jennifer

Professor, Faculty of Law, University of Calgary

Larocque

Franois J.

Lafontaine

Fannie

Lampron

Louis-Philippe

Associate Professor, Faculty of Law Common Law, University of

Ottawa
Associate Professor, Canada Research Chair on International
Criminal Justice and Human Rights, University Laval
Professor, Faculty of Law, Laval University

LaViolette

Nicole

Professor, Faculty of Law Common Law, University of Ottawa

Leclair

Jean

Professor, Faculty of Law, University of Montreal

Levy

Ed

Retired Professor of Philosophy, University of British Columbia

Lewis

Brian

Professor of History, McGill University

Liew

Jamie

Assistant Professor, Faculty of Law Common Law, University of

Ottawa

Lu

Catherine

Associate Professor, Political Science, McGill University

Macklin

Audrey

MacLachlan

Alice

Professor of Law and Chair in Human Rights Law, Faculty of Law,

University of Toronto
Associate Professor, Philosophy, York University

Magnusson

Warren

Professor, Department of Political Science, University of Victoria

Mahoney

Kathleen

Manikis

Marie

Professor of Law, University of Calgary; Fellow of the Royal Society of

Canada
Assistant Professor, Faculty of Law, McGill University

Manwaring

John

Professor, Faculty of Law Common Law, University of Ottawa

Marin

Michael

Assistant Professor, Faculty of Law Common Law, University of Ottawa

Mayeda

Graham

Associate Professor, Faculty of Law Common Law, University of Ottawa

McIntyre

Sheila

Professor Emerita, Faculty of Law Common Law, University of Ottawa

M'Gonigle

Michael

Professor, Faculty of Law, University of Victoria

Milton

Cynthia

Associate Professor, Department of History, University of Montreal

Moon

Richard

Professor, Faculty of Law, University of Windsor

Mossman

Mary Jane

Professor of Law, Osgoode Hall Law School, York University

Mumm

Claire

Assistant Professor, Faculty of Law, University of Windsor

Mykitiuk

Roxanne

Associate Professor of Law, Osgoode Hall Law School, York University

Noreau

Pierre

Professor, Faculty of Law, University of Montreal

O'Toole

Darren

Professor, Faculty of Law, University of Ottawa

Panaccio

Charles-Maxime Associate Professor, Faculty of Law, University of Ottawa

Penney

Steven

Professor, Faculty of Law, University of Alberta

Reaume

Denise

Professor, Faculty of Law, University of Toronto

Resnick

Philip

Professor Emeritus, Political Science, University of British Columbia

Robinson

Darryl

Associate Professor, Faculty of Law, Queen's University

Robitaille

David

Rodgers

Sanda

Professor of Constitutional Law, University of Ottawa and trustee at

the Quebec Center for Environmental Law
Professor Emerita, Faculty of Law, University of Ottawa

Ryder

Bruce

Saberi

Hengameh

Sandborn

Calvin

Savit

Steven

Professor, Faculty of Law, University of Victoria, Legal Director,

UVic Environmental Law Centre
Professor, Department of Philosophy, University of British Columbia

Schulz

Jennifer

Associate Professor, Faculty of Law, University of Manitoba

Scott

Dayna

Semple

Noel

Associate Professor of Law, Osgoode Hall Law School, York University, and
Graduate Program Director
Assistant Professor, Faculty of Law, University of Windsor

Shaffer

Martha

Associate Professor, Faculty of Law, University of Toronto

Sheehy

Elizabeth

Professor, Faculty of Law Common Law, University of Ottawa

Sheptycki

James

Stewart

James

Professor of Criminology, Faculty of Liberal Arts and Professional Studies,

York University
Assistant Professor, Peter A. Allard School of Law, University of British Columbia

Stuart

Donald

Professor, Faculty of Law, Queen's University

Sylvestre

Marie-Eve

Tanguay-
Renaud
Tanovich

Franois
David

Associate Professor, Faculty of Law Civil Law, University of Ottawa, and

Vice-Dean, Research and Communications
Associate Professor of Law, Osgoode Hall Law School, York University, and
Director, Nathanson Centre on Transnational Human Rights, Crime and Security
Professor, Faculty of Law, University of Windsor

Tappolet

Christine

Professor, Department of Philosophy, University of Montreal

Templeton

Saul

Assistant Professor, Faculty of Law, University of Calgary

Trapp

Kimberley N.

Van Harten

Gus

Senior Lecturer in International Law, Faculty of Laws,

University College London
Associate Professor of Law, Osgoode Hall Law School, York University

Associate Professor of Law, Osgoode Hall Law School, York University,

And Academic Director, Anti-Discrimination Intensive Program
Assistant Professor of Law, Osgoode Hall Law School, York University

Vandervort

Lucinda

Professor, College of Law, University of Saskatchewan

Waluchow

Wilfrid

Waters

Christopher

Professor, Senator William McMaster Chair in Constitutional Studies,

Department of Philosophy, McMaster University
Professor, Faculty of Law, University of Windsor

Pue

Wesley

Professor, Peter A. Allard School of Law, University of British Columbia

Whitaker

Reg

Wiseman

David

Distinguished Research Professor Emeritus, York University, and

Adjunct Professor of Political Science, University of Victoria
Assistant Professor, Faculty of Law Common Law, University of Ottawa

Wood

Stepan

Professor, Osgoode Hall Law School, York University